Office of the General Counsel
External Opinion: 98-55
..the application of Part 1626 to... telephone information,
advice and referral system
Director of Advocacy/General Counsel
Northwest Justice Project
401 Second Avenue South, Suite 407
Seattle, WA 98104
Dear Ms. Perluss:
You have asked for a legal opinion regarding the application of 45 CFR Part 1626 to Northwest Justice Project's (NJP) telephone information, advice and referral system. According to your October 16, 1998 inquiry, NJP's system includes telephonic intake, referral, education and advice services.
Part 1626 is the Corporation's regulation which sets out restrictions on legal assistance to aliens. Section 1626.3 provides that LSC "recipients may not provide legal assistance for or on behalf of an ineligible alien" and further provides that "legal assistance does not include normal intake and referral services." §1626.3. The rule includes two documentation exemptions for telephone intake and delivery systems. Section 1626.6(a) provides that:
A recipient shall require all applicants for legal assistance who claim to be citizens to attest in writing in a standard form provided by the Corporation that they are citizens, unless the only service provided for a citizen is brief advice and consultation by telephone which does not include continuous representation. [emphasis added]
and §1626.7(a) provides that:
An alien seeking representation shall submit appropriate documents to verify eligibility, unless the only service provided for an eligible alien is brief advice and consultation by telephone which does not include continuous representation of a client. [emphasis added]
According to these provisions, NJP does not need to determine alien eligibility when the services are limited to intake, referral or education. However, NJP does need to determine eligibility for any person provided brief legal advice or service. The definition of legal assistance in §1626.3 exempts intake and referral services but does not exclude brief legal advice or service. Likewise, the exemptions in §1626.6(a) and 1626.7(a) only apply to the need for written verification of citizenship and alien eligibility; they do not exempt the need to determine whether the client is an eligible alien. This reading of the rule is consistent with the Corporation's March 1997 guidance on recipient hotlines. See Basic Elements of Effective Centralized Telephone Intake and Delivery System at page 10.
The April 9, 1998 OGC Opinion to Atlanta Legal Aid Society that you referenced deals with circumstances that are different in kind from those involved in NJP's telephone system. The dispositive factor in the Atlanta opinion was that the persons serviced by program attorneys under the court grant did not receive any legal assistance because they were pro se litigants who were not applicants for legal assistance and were not provided any legal assistance from program attorneys. Based on your description of NJP's telephone system, it appears that the callers who use your system are generally seeking legal assistance and are, in fact, provided legal assistance when they are given brief legal advice or services.
I hope this adequately responds to your inquiry. Please let me know if we can provide any additional assistance.
/s/ Suzanne B. Glasow
Senior Assistant General Counsel